Founding Member
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Founding Member and Managing Partner engaged in National
Civil and Trial Practice in all Courts including General
Trial and Litigation, Insurance Law, Tort
Liability Defense
Cases, Personal Injury Defense Litigation, Environmental
Liability Defense Litigation, Toxic Tort Defense Litigation,
Products Liability Defense Litigation, Premises Liability
Defense Litigation, Workers' Compensation Claims,
Construction Accident Liability Defense Litigation, Medical
Malpractice Defense Litigation, Insurance Subrogation,
Defense of False Arrest, False Imprisonment, Malicious
Prosecution, Assault and Battery Claims, Corporate and
Commercial Law, and General Trial and Appellate Practice in
all state and federal courts.
Mr. Schmieler has distinguished himself as an outstanding lawyer and successful trial practitioner. All intellectual property claims, environmental claims and toxic tort claims are handled by Mr. Schmieler. While serving as Commissioner on the Criminal Injuries Compensation Commission of the State of Maryland from 1979 until December of 1987, Mr. Schmieler authored and reviewed thousands of compensation opinions and decisions.
Mr. Schmieler has had a good many years' experience as a trial lawyer in the defense of a number of cases involving a wide spectrum of tort and contractual liability defense, as well as defense counsel involving allegations of fraud and fire loss and a number of arson/fire origin cases.
With respect to insurance coverage, he has also been engaged as coverage counsel for a number of major insurance carriers and has an extensive insurance coverage practice and currently provides advice and counseling to insurance companies in a wide variety of insurance coverage and insurance underwriting matters. His practice is concentrated in the analysis and litigation of insurance coverage issues by providing detailed coverage analysis, opinions, evaluations, representation and the litigation of all aspect of insurance coverage on a a national level, serving as coverage counsel in the defense and prosecution of declaratory judgment actions, defense of bad faith claims and a wide spectrum of insurance coverage litigation.
He has been Insurance Counsel in a number of major coverage cases in litigation in Maryland, Virginia, West Virginia, Tennessee, Kentucky, Florida and Pennsylvania and other jurisdictions and has litigated coverage cases extensively in both state and federal courts. He has also provided coverage analysis and opinions involving a significant number of domestic and international insurance policies.
His insurance coverage litigation experience is inclusive of prevailing in a coverage case which was remanded by the United States Supreme Court to the Fourth Circuit Court of Appeals, further remanded to the United States District Court for the District of Maryland and ultimately back to the Fourth Circuit Court of Appeals which resulted in a favorable coverage adjudication. The case was Lords Landing Vill. Condo. Council of Unit Owners v. Continental Ins. Co., 520 U.S. 893 (1997), remanded to 122 F.3d 1061 (4th Cir. 1997), rev'd on appeal from remand, 191 F.3d 448 (4th Cir. 1999). Mr. Schmieler was counsel for the insurer, Continental Insurance Company, in the Lord's Landing case. The case has a tortuous history in that initial summary judgment was granted to Continental by the United States District Court for the District of Maryland, Southern Division, predicated upon the grounds that the repair and replacement costs for the faulty workmanship of a general contractor constitute economic damages resulting from the failure to satisfy a contractual bargain and thus are not losses which constitute property damage caused by an occurrence which are covered by a CGL policy. That decision was appealed to the U.S. Fourth Circuit Court of Appeals which affirmed the District Court's findings. Subsequently, the case went to the United States Supreme Court which granted a GVR order which granted the Petition for Certiorari, Vacated the Order of the Fourth Circuit and Remanded the case to the Fourth Circuit for a consideration of the implication of the Sheets case to the facts of the Lord's Landing case. The GVR Order of the Supreme Court was a Seven to Two Decision. The two dissenting Justices were Chief Justice Rehnquist and Justice Stephen Breyer. The Fourth Circuit in turn remanded the case back to the United States District Court for a reconsideration in view of Sheets. The District Court, upon remand, granted Lord's Landing's Motion for Summary Judgment rejecting the prior rulings and determining that the faulty workmanship exclusions did not apply to exclude coverage. Continental subsequently appealed the District Courts ruling and the Fourth Circuit reversed the summary judgment as entered by the District Court and held that the failure of the general contractor to use primer paint in the construction of the condominium project, as it was contractually obligated, and to carry out other similar obligations were not "unexpected or unforeseen" in that breach of a duty to perform construction work properly is not an "accident" as covered by a CGL policy.
Additionally, he has written extensively and presented seminars on the issue of insurance fraud, tort liability and insurance coverage. He also served on the Governor's Executive Advisory Council fo the State of Maryland and was a member of the Insurance Fraud Committee and chaired the Workeers' Compensation Insurance Fraud Unit.
PERSONAL INFORMATION:
Joined Saunders & Schmieler, P.C. in 1967
EDUCATION:
Legal:
University of Maryland School of Law, 1965-1967 Juris Doctor, 1967
Duquesne University School of Law, 1964-1965
Honors: 1967 Clarence Darrow Scholarship Award for Outstanding Scholastic Achievement
Activities: Phi Alpha Delta Legal Fraternity Legal Fraternity
Continuing Legal Education:
Courses Sponsored by the Maryland Bar Association, 1967 -
Present
Mandatory Continuing Legal Education: Virginia State Bar
Association
Undergraduate:
University of Maryland, College Park
Bachelor of Science, 1964
Bachelor of Arts, 1964
Graduated with Major in Zoology and Minor in Chemistry
Honors: Phoenix Award for Scholastic Achievement, 1964
Activities: Sigma Alpha Epsilon Fraternity, National Law Committee, President - Sigma Alpha Epsilon, 1964
MILITARY EXPERIENCE:
Trained at the University of
Maryland
Two years Reserve Officer, 1960-1962
Maryland State Guard
Commissioned Officer, Second Brigade, February, 10, 1984,
February 10, 1986,
Major, S-2, February 10, 1984 - February 10, 1986
AWARDS & HONORS:
Recipient National Association Criminal Victims
Compensation Board Aware, 1980/1985
PAST EMPLOYMENT POSITIONS:
Criminal Injuries Compensation
Commission, State of Maryland, Appointed to the Board of
Governor Hughes, May 1, 1979, Commissioner
Criminal Injuries Compensation Commission, State of
Maryland, Reappointed, Board by Governor Hughes, Second Five
Years, July 1, 1982, Commissioner Criminal Injuries
Compensation Commission, State of Maryland, Reappointed,
Board by Governor William Donald Schaeffer, 2-5 yr. Term,
Commissioner
BAR AND COURT ADMISSIONS:
Maryland - 1967 District of Columbia - 1969 Virginia - 1991 U.S. Court of Appeals 4th Circuit - 1967 U.S. Court of Appeals District of Columbia Circuit - 1969 U.S. District Court District of Maryland - 1968 U.S. District Court of the District of Columbia - 1969 U.S. District Court Eastern District of Virginia - 1991 U.S. Supreme Court - 1971 U.S. Tax Court - 1969 U.S. Court of Federal Claims - 1970 U.S. Court of Appeals for the Armed Forces - 1969
PROFESSIONAL ASSOCIATION MEMBERSHIPS:
Maryland State Bar Association, 1979 - 1987 American Bar Association Montgomery County Bar Association American Bar Association Montgomery County Bar Association District of Columbia Bar Association Bar Association of District of Columbia Virginia Bar Association Governor's Executive Advisory Council Member of Select Panel on Insurance Fraud Washington Claim Association Governor's Executive Advisory Council Select Panel on Insurance Fraud, February 21, 1992 - present Criminal Injuries Compensation Commission, Commissioner National Council of Self-Insurers Defense Research Institute
SEMINARS:
Litigation
of Insurance Claims - the Defense Perspective, The Chubb
Group of Insurance Companies by entire staff of Saunders &
Schmieler, January 18, 2001
Insurance Fraud - The
Recognition and Identification of Insurance Fraud, The Chubb
Group of Insurance Companies, Baltimore Office,
July 25, 2002
Insurance Fraud - Recovery of
Damages from Insurance Fraud Perpetrators, The Chubb Group
of Insurance Companies, Baltimore Office,
July 25, 2002
Contractual Risk Transfer &
Insurance Coverage, August 11, 1997
Litigation of Insurance Claims
- The Anatomy of a Law Suit, Chubb Group of Insurance
Companies, July 31, 1997
Civil Rights and
Discrimination Claims & Cases - A Defense Perspective, Chubb
Group of Insurance Companies Baltimore Office,
June 18, 1997
Discrimination Claims - A
Defense Perspective, Kay Management Co. Inc.,
March 11, 1997 - March 12, 1997
Civil Rights & Civil Remedies-
A Defense Perspective, Chubb Group of Insurance Companies,
Washington Office,
February 24, 1997
Liability Exposure of Owners &
Operators of Malls, Retail Establishments and Commercial
Enterprises, Governors Executive Advisory Council -
Operation Safe Shopper Presentation,
November 15, 1995
Overview of the Law Applicable
to Premises Liability for Negligence, Landlord Tenant
Liability and The Validity of Indemnity & Hold Harmless
Agreements in the State of Maryland, District of Columbia
and the Commonwealth of Virginia, Housing Providers and
Property Management Companies Silver Spring , Maryland,
June 30, 1994
Insurance Fraud - Establishing
an Agenda to Recover Damages from Insurance Fraud
Perpetrators, Chubb Group of Insurance Companies 15 Mountain
View Road Warren, New Jersey,
June 19, 1992
Maryland Insurance Fraud
Statute - A Statute Which Puts the Insurance Industry on the
Horns of a Dilemma, The Chubb Group of Insurance Companies,
Washington Claims Office,
May 27, 1992
Insurance
and Tort Law in the State of Maryland, District of Columbia,
and Commonwealth of Virginia, The Chubb Group of Insurance
Companies, Washington Claims Office,
May 15, 1991
PUBLICATIONS:
Mid-Atlantic Tort Law Update
Slip and Fall Analysis
Limited Liability Companies
Faulty Workmanship Claims & Insurance Coverage
Maryland Insurance Fraud Statute - A statute which puts the Insurance Industry on the horns of a dilemma, 1992 - In Brief Vol. 2 No. 5
Insurance & Tort Law, 1991
Insurance and Tort Law in the State of Maryland, District of Columbia, and Commonwealth of Virginia, May 15, 1991
Insurance & Tort Law Update, March 18, 1992
Insurance Fraud - Establishing an Agenda to Recover Damages from Insurance Fraud Perpetrators, June 16, 1992
Insurance & Tort Law Update, 1994
Overview of the Law Applicable to Premises Liability for Negligence, Landlord Tenant Liability and The Validity of Indemnity & Hold Harmless Agreements in the State of Maryland, District of Columbia and the Commonwealth of Virginia, June 30, 1994
Liability of Exposure of Owners and Operators of Malls, Retail Establishments and Commercial Enterprises, November 17, 1994
Good Samaritan Statutes, October 22, 1996
Fair Housing Discrimination Claims - A Defense Perspective, February 24, 1997
Discrimination Claims - A Defense Perspective, March 11,1997 & March 12, 1997
Civil Rights and Discrimination Claims & Cases - A Defense Perspective, June 18, 1997
Litigation of Insurance Claims - The Anatomy of a Law Suit, July 31, 1997
Contractual Risk Transfer & Insurance Coverage, August 11, 1997
Discrimination Claims - A Defense Prospective, June 18, 1998
Guide to Products Liability, 1999
Liability Exposure Analysis Damage Assessment Coverage Examination, June 19, 2000
Litigation of Insurance Claims - The Defense Perspective, January 18, 2001
Personal Injury Protection (P.I.P) Coverage, February 8, 2002
Insurance Fraud - The Recognition and Identification of Insurance Fraud, July 25, 2002
Insurance Fraud - Recovery of Damages from Insurance Fraud Perpetrators, July 25, 2002
Coverage Considerations Indemnity & Hold Harmless Provisions Business Risk Exclusions Risk Assessment & Claims Evaluation, September 10, 2002
Liability Exposure of Professional Sports Teams and Facilities, January 8, 2004
Tort & Insurance Law 2004 Update, February 2004
Liability Exposure Analysis Damage Assessment, April 6, 2004
Recent Developments, March, 1996 to Present
REPORTED CASES:
Perdue Farms Incorporated v. National Union Fire Insurance Company of Pittsburgh, P.A. & Federal Insurance Company, 197 F.Supp.2d 370 (D. Md. 2002) -- No Advertising Liability Insurance coverage exists for the misappropriation of a trade secret nor for the breach of confidentiality agreements intended to protect the trade secrets. For full text of the above opinion, click on: http://www.mdd.uscourts.gov/Opinions152/Opinions/perdue0402.pdf.
Information Systems and Network Corporation, et al. v. Federal Insurance Company, 145 Md. App. 457, 805 A.2d 1141 (2002) -- In a precedent case in Maryland, the Court of Special Appeals held that no insurance coverage existed in the subject commercial general liability (CGL) and excess policies for the underlying state and federal qui tam False Claims Acts action alleging misrepresentation by the insure contractor to procure government contract. For full text of the above opinion, click on: http://www.courts.state.md.us/opinions/cosa/2002/1874s00.pdf.
Sigmund v. Starwood Urban Retail VI, LLC, 617 F.3d 512 (D.C. Cir. 2010)
Am. Powerlifting Ass'n v. Cotillo, 401 Md. 658, 934 A.2d 27 (2007)
Continental Casualty Co. v. Kemper Ins. Co., et al., 173 Md. App. 542, 920 A.2d 66 (2007)
Federal Insurance Company v. The New Coal Company, Inc., 415 F. Supp. 2d 647 (W.D. Va. 2006)
Mourning v. APCOA Standard Parking, Inc., 828 A.2d 165 (D.C. 2003)
Manifold v. Wolf Coach, Inc., 231 F.Supp.2d 58 (D.D.C. 2002)
Heritage Harbour, L.L.C. v. John Reynolds, Inc., 795 A.2d 806 (Md. Ct. Spec. App. 2002)
OTHER REPORTED CASES: Supreme Court: Lords Landing Village Village Condo. Council of Unit Owners v. Continental Ins. Co., 520 U.S. 893, 117 S.Ct. 1731, 138 L.Ed.2d 91 (1997), on remand to 122 F.3d 1061 (1997), and on appeal to 191 F.3d 448, 1999 WL 710342 (4th Cir. (Md.)) The Court of Appeals for the Fourth Circuit has issued a number of decisions which hold that the costs of repair and replacement of faulty workmanship is not covered under a commercial general liability policy. These decisions have mirrored other decisions and found that a contractor's poor workmanship does not qualify as an accident under a CGL policy. In Lords Landing Village Condominium Council of Unit Owners v. Continental Ins. Co., the United States Court of Appeals for the Fourth Circuit held that the repair and replacement costs for the faulty workmanship performed on behalf of the general contractor of a condominium project are economic losses resulting from the failure to satisfy a contractual bargain and thus are not losses covered by the CGL policy. In doing so, the Court indicated that CGL policies compensate for physical damage to property of others, and not for an insured's contractual liability because the product or completed work supplied by the insured are not that which the damaged third-party bargained. It further indicated in quoting a leading treatise, that the risk intended to be insured is the possibility that the goods, products or work of the insure, once relinquished or completed, will cause "bodily injury" or "property damage" other than to the product or completed work itself, observing that because poor performance is merely a cost of doing business, it falls out side of the scope of CGL coverage, which does not serve as a performance bond, nor does it serve as a warranty of goods and services. A CGL: policy compensates for tort liability of others and not for the insured's contractual liability; Federal Circuit Courts: Beard Plumbing and Heating, Inc. v. Thompson Plastics, Inc., 152 F.3d 313 (4th Cir. 1998); Holbrook v. Howard School of Dentistry, 1998 U.S. App. Lexis 33917 (1998); Treakle v. Jones, 1997 U.S. App. Lexis 16352 (1997); St. Paul Fire & Marine Ins. Co. v. Fallon, 1994 U.S. App. Lexis 1127 (1994); Federal District Courts: Neibuhr v. Amtrak, 955 F.Supp. 135 (D.D.C. 1997); Jackson v. Fedders Corp., 1996 U.S. Dist. Lexis 7306 (1996); Armada de la Republica v. Yorkington, L.P., 1995 U.S. Dist. Lexis 1317 (1995); St. Paul Fire & Marine v. Continental Ins. Co., 1993 U.S. Dist. Lexis 6556 (1993); Herlihy v. Ply-Gem Indus., 752 F.Supp. 1282 (D.Md. 1990); Other Federal Courts' Decisions: Aaberg v. ACandS, Inc., 152 F.R.D. 498 (1994);
1 See, e.g., Lords Landing Village Condominium Council of Unit Owners v. Continental Ins. Co., 1999 Us. App. Lexis 21938 (4th Cir. 1999); Traveler's Indemnity Co. of Am. V. Miller Building Corp., 142 Fed. Appx. 147 (4th Cir. 2005) (holding that contractors faulty installation of building foundation did not trigger coverage under CGL policy); OneBeacon Ins. Co., v. Metro Ready-Mix, Inc., 242 Fed. Appx. 936 (rth Cir. 2007) (repairs to defective grout that required demolishing non-defective building components did not qualify as accident because it was foreseeably required to deliver on the building contract); Travelers Indemnity Co. of Am. v. Tower-Dawson, LLC, 299 Fed. Appx. 277 (4th Cir. 2008) (holding that repairs to defective retaining wall was not an accident because repairs were foreseen as a result of the contract).
2 1999 U.s. App. Lexis 21938 (4th Cir. 1999). The undersigned was counsel for the Insurer Continental Insurance Company in the Lord's Landing case. The case has a tortuous history in that initial summary judgment was granted to Continental by the United States District Court for the District of Maryland, Southern Division, predicated upon the grounds that the repair and replacement costs for the faulty workmanship of a general contractor constitute economic damages resulting from the failure to satisfy a contractual bargain and thus are not losses which constitute property damage caused by an occurrence which are covered by a CGL policy. That decision was appealed to the U.S. Fourth Circuit Court of Appeals which affirmed the District Court's findings. Subsequently the case went to the United States Supreme Court which granted a GVR order which granted the Petition for Certiorari, Vacated the Order of the Fourth Circuit and Remanded the case to the Fourth Circuit for a consideration of the implication of the Sheets case to the facts of the Lord's Landing case. The GVR Order of the Supreme Court was a Seven to Two Decision. The two dissenting Justices were Chief Justice Rehnquist and Justice Stephen Breyer. The Fourth Circuit in turn remanded the case back to the United States District Court for a reconsideration in view of Sheets. The District Court, upon remand, granted Lord's Landing motion for Summary Judgment rejecting the prior rulings and determining that the faulty workmanship exclusions did no apply to exclude coverage. Continental subsequently appealed the District Courts ruling and the Fourth Circuit reversed the summary judgment as entered by the District Court and held that the failure of the general contractor to use primer pain in the construction of the condominium project, as it was contractually obligated, and to carry out other similar obligations were not "unexpected or unforeseen" in that breach of a duty to perform construction work properly is not an "accident" as covered by a CGL policy.
3 Woodfin Equities Corp. v. Hartford Mut. Ins. Co., 110 Md App. 616, 678 A.2d 116, 128 (1996).
4. Robert Franco, Insurance Coverage for Faulty Workmanship Claims Under Commercial General Liability Policies, 30 Tort & Ins., L.J. 785, 785-87 (1995).